I wrote two days ago at this site, in reference to that January 3 idea, that I wasn’t against naked power grabs in principle, even if this scheme didn’t seem likely to work because our side would never get itself together to pull it off. But this site is currently running one of those action items asking people to sign onto this January 3 scheme, and that got me to see that this idea has gotten beyond pure speculation, that some of us actually are thinking of having a go at it. That prospect has made me realize that there are much bigger problems with this scheme than the fact that our side couldn’t pull it off.
The idea is that there is a window of time between the old class of Senators being out and the new class sworn in, during which the Ds will actually have a majority, Biden will be in the chair, and our side can therefore get Garland voted onto SCOTUS. It would take all sorts of violations of Senate rules, but not only are those arguably not carried over from the last Congress until the new Senate votes them in, but even if they are, the rules of the Senate can be changed at any time by a simple majority.
And, the argument for this scheme goes, not only is it doable by exploiting the rules, it’s justified by the failure of the R majority for almost a year to even give Obama’s nominee a hearing, much less an up or down vote. The rules didn’t force them to hold a vote, and they sure exploited that, so doesn’t our side get to score one during this brief period of time on January 3, 2017 when we will hold the majority?
I believe my first reaction is right, our side would never pull it off, and trying but failing at one of these naked power grabs is worse than useless. The power grab of McConnell blocking Garland would sure look foolish had Clinton won. But this January 3 idea would be much more difficult. We would need near-unanimity among D Senators, and the cooperation of Biden, who would be in the chair, and Obama, who would have to renominate Garland. That could not possibly be arranged in secret, so the other side would have an opportunity to take countermeasures, offering inducements to marginal Ds like Manchin to defect from the scheme, perhaps using it as an excuse for jumping parties, as he has been mentioned as planning to do.
But the action item at this site got me to considering what would happen if our side actually did pull it off. Grant the hypothetical that we keep all of our Senators together, and Biden, Obama and Garland himself all agree to play their parts. Garland carries a copy of this confirmation vote across the street from the Senate to the SCOTUS building, and what happens next?
The real practical objection to this scheme is that even if it works on our side’s part, even if we stage this power grab, nobody will respect the outcome. Garland won’t be allowed on the court. As soon as the new class of Senators is sworn in and some R takes the chair, one or both of two documents will be forthcoming to keep our Garland confirmation document company.
One kind of measure they might pass, is a direct take-back of our side’s confirmation vote. The real Senate will vote that the confirmation vote was held against Senate rules, and will order it stricken from the record. Maybe the rules of the Senate do not allow the practice of correcting and extending the Senate’s part of the Congressional Record to extend to rescinding votes of the Senate, but hey, our side will have just thrown out a dozen or so rules to confirm Garland, so who cares about the old rules of the Senate? They’ll send a copy of this rescinding vote across the street even quicker than Garland can make the journey, and which scrap of paper do you think will be accepted over at SCOTUS?
More direct though, would be a vote of the actual, 100-member Senate, to reject the Garland nomination. That has been a hard vote for the other side up to this point when our side makes this power grab, because Garland is eminently qualified. But the attempted coup, and Garland’s necessary cooperation with it (he has to accept a renomination that could only be a part of this scheme), makes it easy for their Senators to vote against him. Someone who engages in naked power grabs is obviously not qualified to sit on the court. So this third document crosses the street to SCOTUS, a Senate vote rejecting Garland. Which gets honored by the Chief Justice, the pretended vote of a truncated Senate that purports to confirm Garland, or the actual vote of the real Senate that rejects his nomination?
All three of these votes would just be scraps of paper. Our Constitution is just a scrap of paper, as are all of our statutes and court rulings. All of it, all of our government, all of the society that we share, is shared by means of words and ideas and the scraps of paper they are recorded on. Some of these scraps of paper get themselves obeyed and followed, and to do that they have to get us to throw other scraps of paper in the trash.
What this January 3 scheme is, what the Electoral College Salvation scheme is, are attempts to get the rules thrown out because we don’t like this year’s outcome of the rules under which we conduct our elections. Sure, it can and should be pointed out that neither scheme will work anyway because we’re not actually going to get enough of the people involved to crumple up the rules and toss them in the waste basket. But the real reason we should not be talking about even trying to do either, is that these rules we want to chuck are not wrong, not even close to wrong.
The Senate gets to reject a president’s nominee. It isn’t required by any rule of law or fairness to accomplish that rejection by way of an up or down vote. Rejection by inaction is both legal and completely fair. The people are not required to vote for only sane and responsible people to be president. They get to vote for whoever they choose, as long as that person meets the legal requirements.
If you’re in the mood to chuck some rules, look for rules that actually deserve to go in the trash. The rules we follow to try to win elections, the commandments of the great god Messaging, those all need to be chucked. Those are stupid and vicious rules, those rules have already been thrown out by the other side, and the other side won. Maybe our side should try saying what we think, what we stand for, for a change, instead of trying not to offend anyone, an act so old that everyone who might take offense sees through it and is offended anyway. But the rule that says that nominees should be confirmed by the whole Senate, the actual Senate, and not some fly-by-night 34 Senator majority, that’s a sound rule. The state laws that give us bound electors who vote for the electorate’s choice, those are sound laws compared to election law that would leave the choice of president to 51 colleges of an aristocracy hallucinated by Hamilton, an aristicracy that didn’t even exist in 1789, much less in 2016.
The proper remedy for an electorate that screwed up and elected a dangerous idiot, who will make dangerous and idiotic SCOTUS appointments, the only remedy compatible with our democracy surviving, is to win the next election, throw the bums out, and then do better in office ourselves than the reign of idiocy the people have visited upon us for the next four years. This election is over, we lost. A bad candidate won and will soon be president. But a bad situation can always be made worse. Trying to make all of the words and ideas our society rests on into equally meaningless scraps of paper by pursuing these schemes is the exact wrong thing to be doing now that we have the next election to win.